Delhi High Court - Orders
M/S Alankit Finsec Limited & Anr vs M/S D B Khan And Co on 23 November, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 220/2019 & CM APPL. 47988/2022
M/S ALANKIT FINSEC LIMITED & ANR
..... Petitioner
Through: Ms. Priya Pathania and Mr.
Vaibhav Sethi, Advs.
versus
M/S D B KHAN AND CO
..... Respondent
Through: Mr. Amique Khalid, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
O R D E R (ORAL)
% 23.11.2022
1. This petition under Article 227 of the Constitution of India, assails order dated 20th September 2018 passed by the learned Additional District Judge (the learned ADJ) in CS 50/16 (D.B. Khan v. Alankit Finsec Limited ), whereby an application by the petitioners, as the defendants in the said suit, seeking recall of PW-1, PW-2 and PW-3 for cross-examination has been dismissed.
2. The application was preferred under Order XVIII Rule 17 of the CPC to review an earlier order dated 5th March 2018, whereby the right of the petitioner to cross-examine PW-1, PW-2 and PW-3 was closed.
3. The impugned order which rejects the said application, read thus:
"(SR) Signature Not Verified At second call Digitally Signed By:KAMLA RAWATCM(M) 220/2019 . Page 1 of 4 Signing Date:24.11.2022 12:35:36 Present: Mr Abhishek Kumar, counsel for plaintiff, Ms. Pritha, proxy for Mr. Himanshu Nainwal, counsel for defendant.
Arguments heard.
Counsel for plaintiff has opposed this application. Counsel has brought to the notice of the court that the arguments advanced and the contents of the application are different. Counsel for plaintiff has opposed the application on the ground that the reason mentioned in the application is totally different. Reason stated for the adjournment dt. 05.03.2018 are different. Moreover, counsel for plaintiff has submitted that defendant has not been able to explain the delay of six months after his right to cross examine PW l of the defendant was closed. Proxy counsel for defendant sought pass over for asking about the reason for delay, however, thereafter, she submitted that the main counsel could not be contacted. Hence, in view of the above mentioned discussion, the application is dismissed subject to cost of Rs. 10,000/- (to be deposited in bharatkeveer.com).
Be put up for purpose already fixed on 04.12.2018.
(SUNIL BENIWAL) ADJ-02, Central, Delhi 20.09.2018"
4. Though the order is not easy to comprehend, it appears that the learned ADJ has rejected the petitioner's application basically on the ground that the petitioner could not satisfactorily explain why it took six months for the petitioner to move the said application.
5. This Court is not satisfied that the application of the petitioner could have been rejected merely on the ground of delay, for three reasons. Firstly, there is no period of time stipulated in the CPC within which an application for recall of an order, whereby the right to cross- examine the witness was closed, is to be preferred. Secondly, the delay could not be regarded as inordinate, being merely six months. Thirdly, th between 5 Signature Not Verified March 2018 and 20th September 2018, CS 50/16 was listed Digitally Signed By:KAMLA RAWATCM(M) 220/2019 . Page 2 of 4 Signing Date:24.11.2022 12:35:36 only on one occasion which was on 7th June 2018.
6. The order dated 5th March 2018 closed the right of the petitioner to cross-examine PW-1, PW-2 and PW-3 solely on the ground that the witnesses have to come from Maharashtra. As the order itself reflects, the examination-in-chief of PW-2 and PW-3 was concluded only on that very day, i.e. 5th March 2018. There could, therefore, be no question of cross-examining of witnesses on any day prior to 5 th March 2018. As a result, the position that emerges is that, on the very first day when the witnesses could be cross-examined, the right to cross-examination was closed, solely on the ground that the witnesses had come from Maharashtra. The decision appears, prima facie, not to be justified, especially keeping in mind the sanctified right of every party in civil and criminal proceedings to be granted adequate and complete opportunity to prosecute its case.
7. Moreover, the petitioner has not only deposited the cost of ₹ 10,000/- imposed by the learned ADJ by the impugned order dated 20 th September 2018, but is also willing to pay the requisite diet money for making available the presence of PW-1, PW-2 and PW-3 for cross- examination by the petitioner.
8. In the circumstances, I am of the opinion that the petitioner is entitled to one opportunity to cross-examine PW-1, PW-2 and PW-3.
9. The matter is stated to be next listed before the learned ADJ tomorrow i.e. 24th November 2022.
10. In the circumstances, the learned ADJ is requested to fix a Signature Not Verified particular date on which the respondents would, subject to the petitioner Digitally Signed By:KAMLA RAWATCM(M) 220/2019 . Page 3 of 4 Signing Date:24.11.2022 12:35:36 paying diet money as may be fixed by the learned ADJ, make available PW-1, PW-2 and PW-3 for cross-examination by the petitioner.
11. On the said date, the petitioner should be present and be in a position to conduct the cross-examination, in default whereof the right to cross-examine the said PWs would stand forfeited. This petition accordingly stands allowed to the aforesaid extent with no order as to costs.
12. Let a copy of this order be given dasti to learned Counsel for the parties under the signatures of the Court Master.
C.HARI SHANKAR, J NOVEMBER 23, 2022/AR Signature Not Verified Digitally Signed By:KAMLA RAWATCM(M) 220/2019 . Page 4 of 4 Signing Date:24.11.2022 12:35:36